2/13/2008

Misunderstanding of Suspension of Sentence

There are many misconceptions concerning suspension of the execution of sentences in Korea.

Today, Brendan Carr, an American attorney working for a medium-sized law firm, noted on his blog that in the first jury trial case a 4-year sentence was suspended. It is impossible to suspend a 4-year sentence.

Criminal Act
Article 62 (Requisites for Suspension of Execution of Sentence)
(1) In cases where a sentence of imprisonment or imprisonment without prison labor for not more than three years is to be imposed and there are extenuating circumstances taking account of the provision of Article 51, the execution of the sentence may be suspended for a period of not less than one year but not more than five years . . .



For example, if a mandatory minimum sentence is 10 years and the judge uses his discretionary mitigation (1/2 of min. sentence), then the sentence is 5 years and the execution of the sentence can't be suspended. In general, for completed crime two mitigations are possible, however, the second mitigation is next to impossible to obtain. For an attempted crime three mitigations are possible, but the final mitigation is next to impossible. Each mitigation is 1/2 half the mandatory minimum sentence. Thus, 60 months -30 months -15 months.

In general, when a sentence is three years or under the sentence is suspended if a defendant settles with the victim or if extenuating circumstance exist.

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SeanHayes@ipglegal.com